Standing Committee D

[Mr. Joe Benton in the Chair]

Justice (Northern Ireland) Bill [Lords]

Ordered, 
 That— 
 (1) during proceedings on the Justice (Northern Ireland) Bill the Standing Committee shall meet on Thursdays at 9.10 am and 2.30 pm; 
 (2) 4 sittings shall be allotted to the consideration of the Bill in Committee; 
 (3) the proceedings shall be taken in the following order: Clause 1, Schedule 1, Clauses 2 to 4, New Clauses relating to removal or suspension from judicial offices, Clauses 5 to 10, Schedule 2, Clauses 11 to 15, Schedule 3, Clauses 16 and 17, Schedule 4, Clauses 18 to 22, Other New Clauses, New Schedules, remaining proceedings on the Bill; 
 (4) Proceedings on the Bill shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Thursday 1st April 2004.—[Mr. Spellar.]

Joe Benton: I remind the Committee that there is a money resolution in connection with the Bill, copies of which are available in the Room. Adequate notice should be given of amendments. As a general rule, I do not intend to call starred amendments, including any that may be reached during an afternoon sitting.Clause 1 Transfer to Lord Chancellor of functions relating to Judicial Appointments Commission

Clause 1 - Transfer to Lord Chancellor of functions relating to Judicial Appointments Commission

David Trimble: I beg to move amendment No. 47, in
clause 1, page 1, line 5, leave out from 'Schedule 1' to end of line 7.

Joe Benton: With this we may discuss the following amendments: No. 52, in
schedule 1, page 12, line 4, at end insert 
 'In section (1) of the 2002 Act, leave out ''of justice''.'.
 No. 53, in 
schedule 1, page 12, line 8, at end insert— 
 '(a) 2A section 4 is amended as follows, 
 (b) In subsection (2) of section 12 after the words ''Lord Justice of Appeal'' at end insert ''or a judge of the High Court''. 
 (c) leave out section 12A.'.
 No. 54, in 
schedule 1, page 12, line 24, at end insert— 
 '(1) In section 9 leave out the words ''Lay Magistrate'' wherever they occur and substitute ''Justice of the Peace''. 
 (2) leave out section 10.'.

David Trimble: May I say how much I look forward to the proceedings of the Committee, Mr. Benton? I am sure that we all want to remain as well focused as we can.
 Amendment No. 47 is a technical amendment that would pave the way for more substantial amendments to the schedule. I shall not refer much to the text of that amendment, but it is appropriate to say 
 something about the other amendments. The substantive amendments in the group are amendments Nos. 55 and 28. The latter expresses our disdain for this legislation and this clause. When I say ''our disdain''—

Joe Benton: Order. We are not discussing amendments Nos. 55 and 28. We are discussing amendments Nos. 52 to 54 with amendment No. 47.

David Trimble: My apologies, Mr. Benton. I assumed that we were dealing with all the amendments listed under clause 1, but I see now that amendment No. 55 is on a separate line, so we shall leave the discussion on that until later. That enables me to deal in more detail with the amendments that I have tabled to schedule 1. Amendment No. 47 enabled me to table the other amendments to schedule 1. Amendment No. 51, which has not been selected, is also technical. The substantive amendments are amendments are Nos. 52 to 54. Amendment No. 52 would amend section 1 of the Justice (Northern Ireland) Act 2002.
 The reason why I tabled the amendment is quite simple. I approach this legislation with a fairly fresh eye, not having served on the Committee that considered the 2002 Act. Looking at section 1 of that Act, which is entitled 
''Guarantee of continued judicial independence'',
 I was struck by the fact that it refers to the responsibility to 
''uphold the . . . independence of the judiciary.''
 That is an admirable sentiment, but why is the responsibility limited to those with responsibility for the administration of justice? It seemed to me that that duty should rest with all in government. All Ministers experience occasions on which they deal with the law and the courts, so it would be right for the duty to uphold the administration of justice to be general in its application, rather than limited as it is under section 1. 
 My next point also concerns a substantive matter. Section 4 of the 2002 Act relates to appointments of the Lord Chief Justice, Lords Justices of Appeal and High Court judges. It draws a distinction between the provisions for appointing the Lord Chief Justice and lord justices of appeal and for appointing High Court judges. The latter appointments come under the purview of the Judicial Appointments Commission and the procedures set out in section 12A of the Judicature (Northern Ireland) Act 1978, which was added by the 2002 Act. The amendments that I have tabled would treat High Court judges in the same way as the Lord Chief Justice and Lords Justices of Appeal. Will the Minister tell us why appointments of High Court judges have not been treated in the same way? 
 I want to draw the Minister's attention to the background context. Historically—I am referring to the situation in Northern Ireland under the previous devolved arrangements—a significant distinction was drawn between appointments. Under the Government of Ireland Act 1920, appointments of High Court judges, Lords Justices of Appeal and the Lord Chief Justice were made by the Lord Chancellor in Westminster, whereas appointments of county court 
 judges and lesser judicial appointments were made by the Government of Northern Ireland established under the 1920 Act. Under those arrangements, the devolved Administration had a role in making appointments up to the level of county court judges, but appointments of High Court judges and above were matters reserved for Westminster. 
 That was an important measure designed to ensure the independence of the judiciary at that level, and to ensure that there was no possibility of the local Administration exercising partial influence over senior judicial appointments. I should not have to spell out to Members of the Committee the significance of that. Under the 2002 Act, that safeguard is broached, and High Court appointments come under the influence of the devolved Administration. The more senior appointments of Lord Justice and Lord Chief Justice are reserved for a different procedure and can be made only by High Court judges. 
 By transferring the appointment of High Court judges into the purview of the devolved Administration, we are preconditioning the appointments of Lord Chief Justice and the lord justices of appeal. Is that wise? I have grave reservations about it. I am not sure to what extent that point was considered in the debate on the 2002 Act, but it is worth discussing it in this Committee and I look forward to hearing what the Minister has to say. We must ensure that, with regard to senior judicial appointments at the level of the High Court and above, we limit any partial influence that might come to bear. 
 Amendment No. 54 may be regarded as self-indulgence on my part. I cannot understand why the historic term ''justice of the peace'' is to be discarded in favour of the ugly term ''lay magistrate''. Why should we replace a phrase that has considerable antiquity, is familiar to people, and carries an indication of the nature of the role, with a comparatively flat and ugly phrase?

Dominic Grieve: I think that I can give the right hon. Gentleman the answer. The Government do not like the lay magistracy. Throughout their time in office they have shown a desire to reduce it to insignificance and to limit it to menial tasks in the courts in both Northern Ireland and in England and Wales. The terminology is linked to that.

David Trimble: That may very well be the case, although on that specific point the Minister may reply that we in Northern Ireland took a huge step towards reducing the significance of the role of justices of the peace in 1935. We restricted their role compared to their role in England and Wales and confined petty sessions work to resident magistrates, as they were then called. That name has also been changed and I disapprove of that too.
 The purpose of the amendment is simply to ask the Minister why an historic term that is meaningful to people is to be replaced by an ugly flat phrase that no one will consider it an honour to have attached to their name. It is a simple point but it encapsulates a broader 
 point too. The Government have a tendency to wish to change things and rarely are the changes for the better. I can think of other name changes that have occurred in Northern Ireland, and also some here. I might even be inclined to say, Mr. Benton, that the name change in amendment No. 55, to which you directed me not to speak at this stage, is another example of this tendency to change things not for the better but for the sake of change. Amendment No. 54 might be slightly self-indulgent on my part but amendment No. 53 is a matter of significance. I would like to hear what the Minister has to say on that.

John Spellar: I thank the right hon. Gentleman for the way in which he moved his amendment. As the Bill largely deals with the implementation of the Justice (Northern Ireland) Act 2002, there is a danger of revisiting many of the basic principles that were decided then by Parliament. Many arise from the review of the criminal justice system in Northern Ireland of 2000 and so were the subject of debate for some period before then.
 I have no objection to hon. Members wishing to re-raise issues that they feel are significant, but for the good administration of justice and the progress of legislation we cannot keep revisiting issues that have been dealt with many times, although that might be counter-cultural in terms of many of the debates that take place on this subject in this House and elsewhere. I was on the Opposition team in 1994–95 when Mo Mowlam, as shadow spokesman, asked a group—I forget which—whether, as we were a bit tight for time, we could go back no earlier than 1920. I understand this, but there is a danger. No doubt there will be other times when there are issues of principle that have essentially been decided but which will still be the subject of debate. We need to bear in mind the need to move forward on the basis of matters that have already been agreed. 
 As hon. Members will be aware, the 2002 Act provides for the commission to be established after the devolution of justice functions to the Northern Ireland Assembly. I am sure that we will return to that on later amendments. The commission would be appointed by and make recommendations to the First Minister and Deputy First Minister. The First Minster and Deputy First Minister would also exercise the functions ancillary to the commission such as the making of grants and staffing. The intention to establish the commission in advance of devolution was clearly stated not only in the of criminal justice review but in the implementation plan, which was updated in June 2003. That is achieved by clause 1 and schedule 1, which transfer the functions of the First and Deputy First Minister to the Lord Chancellor. 
 As has been said, amendments Nos. 47 and 51 would widen the scope of schedule 1 to allow for amendments Nos. 52 to 54. What would amendment No. 52 do? It would amend section 1 of the Justice (Northern Ireland) Act 2002, which refers to those who have the duty to uphold the continuing independence of the judiciary. Under the amendment, that duty would apply to ''the administration'' rather than specifically those with 
 responsibility for the administration of justice. I accept that that raises an interesting point, and I have given it some thought since the amendment was published. I am not sure that I agree with it, but it demands further reflection—if not in the context of this Bill, in the context of the Constitutional Reform Bill in another place. I assure the right hon. Gentleman that I will reflect further on the suggestion. 
 The purpose of amendment No. 53 is to treat the appointment of High Court judges in the same way as the appointment of the most senior judicial posts. That is not what the criminal justice review recommended. It is clear that different arrangements should apply to the appointment of the Lord Chief Justice and lord justices of appeal, as they have responsibilities that could go beyond Northern Ireland. We are also dealing with a much smaller pool of potential appointees. The 2002 Act is deliberately framed to make different provision for the most senior judicial appointments, and we see no case for departing from that position or applying those arrangements to High Court judges. 
 Amendment No. 54 would remove the provision for the new judicial office of lay magistrate and refer instead to the office of justices of the peace. The criminal justice review saw the need for a new office of lay magistrates with a defined role in the criminal justice system, taking on some, but not all, functions of the justices of the peace. According to the review, some of the other functions are rarely exercised anyway. Existing JPs will be able to apply for the new post of lay magistrate, and I fully anticipate that many will do so. 
 We do not see why we should not proceed with appointments to the new judicial office with its defined functions, especially as that issue was debated fully during the passage of the 2002 Act. Accordingly, we cannot recommend that the amendments be made.

David Trimble: I thank the Minister for his brief and entertaining reply to the amendments. I say ''entertaining'' advisedly. I was struck by his opening comment that we cannot keep coming back to the issues, because we do. This is the second criminal justice Bill for Northern Ireland in a couple of years, and we have had three police Acts in the past few years. We keep returning to the issues, and in coming back, we can perhaps have second thoughts.
 The Minister's other amusing comment was that the Bill was designed to implement the 2002 Act and that we should not revisit it. The 2002 Act is clear that the provisions for appointing judges and the Judicial Appointments Commission would come into operation on devolution of criminal justice matters. The Bill is designed to amend rather than implement the 2002 Act, which means that we are revisiting the provisions and changing them. That demands some explanation from the Minister, as what is happening is the reverse of what he said. His comments certainly helped to keep us amused. 
 I thank the Minister for his undertaking to reflect on amendment No. 52. I shall not press the 
 amendments, partly because of that undertaking but also because that allows me to pursue the issue in amendment No. 53 at another stage. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Dominic Grieve: I beg to move amendment No. 55, in
clause 1, page 1, line 5, leave out 'Lord Chancellor' and insert 
 'Secretary of State for Constitutional Affairs'.
 I welcome you to the Chair, Mr. Benton, and also welcome the Minister, who is my pair, although I have never been allowed to pair with him in the six years since I have been in the House. I wonder whether we should not have a special clause in the proposed civil partnerships Bill to ensure that the relationship is recognised and can be exercised in future. 
 The right hon. Member for Upper Bann (Mr. Trimble) was rather shocked to see amendment No. 55 on the amendment paper. He felt that there was an incompatibility between that and my stated views on the future of the office of Lord Chancellor. I reassure him at the outset that this is a probing amendment. Its purpose is to enable the Committee to consider the implications that have arisen from the change in the Lord Chancellor's status since the Justice (Northern Ireland) Act 2002 was passed, and also to find out from the Government what impact that might have on the Bill if further changes occur. 
 The Lord Chancellor is described in the Bill as the Lord Chancellor, but that is no longer his title. As a result of changes announced last summer, he has become the Secretary of State for Constitutional Affairs and Lord Chancellor. If the Prime Minister had had his way, that latter title would have disappeared; it was preserved only when it was discovered that it could not be magicked away because it featured in more than 500 pieces of primary legislation, and that the Lord Chancellor had set statutory functions. 
 Nevertheless, as Lord Woolf made clear in debates in the upper House on the future of the Constitutional Reform Bill and the Government's proposals, the Government no longer have the Lord Chancellor in his previous guise, but a hybrid that causes the judiciary a great deal of anxiety, because it mixes functions of a purely political nature with the previous duties aimed specifically at the administration of justice and the representation of the judiciary and judges' rights in Government. 
 I would therefore like to know at the outset why, notwithstanding those changes, the Bill still uses the expression ''Lord Chancellor''. I hope that the Minister will be able to answer the question, because it would be educational for the Committee to find out why that title has been retained rather than the long title of Secretary of State for Constitutional Affairs and Lord Chancellor. 
 The second issue that the Committee should consider is what will happen if the Constitutional Reform Bill goes through in its present form and intention. In the schedule to that Bill, will there be a move to re-word this legislation so that for ''Lord 
 Chancellor'' we substitute ''Secretary of State for Constitutional Affairs'', and if so, what will that Secretary of State's obligations be in respect of Northern Ireland? Will he, as has been suggested, be bound by the special statutory function, which it appears that the Government wish to give to him, to uphold the independence of the judiciary, or will that function extend only to England and Wales? How will his Northern Ireland functions be discharged, and how do the Government intend, in those circumstances, to provide adequate statutory protection to the judiciary in respect of the role previously exercised by the Lord Chancellor? 
 The issue is simple but raises matters of considerable complexity. It seems to me that in the way in which the Bill has been drafted, the Government have—probably intentionally—glossed over the matter.

Andrew Hunter: I echo the comments of other hon. Members in welcoming you to the Chair, Mr. Benton. In reply to my hon. Friend, I may say that I am heartily relieved to hear that this is a probing amendment. When I first read it, I reacted with incredulity, since at first sight it runs entirely counter to the main thrust of opposition to the Bill that our party set out on Second Reading: that aspects of the Bill amounted to politicisation of the process of judicial appointments.
 I listened with interest to my hon. Friend. I concede that there are matters to be considered and that he raises valid questions. I, too, hope that the Minister's answers will satisfy us. However, I make the point with the utmost brevity to my hon. Friend, that although his is a probing measure, it probes in the wrong direction, because were that route to be followed, it would advance and enhance the very politicisation of the process to which we object. 
 In time, it is likely that the Secretary of State for Constitutional Affairs may be a man or woman with no legal background or experience, who would therefore, in my crude definition, be an ordinary party politician. It would be disadvantageous for such a person to have the power ascribed in the Bill to the Lord Chancellor.

Andrew Robathan: My hon. Friend is pursuing an interesting argument. Does he think that a so-called ordinary party politician would be better or worse than someone appointed on the basis of having shared a flat with the Prime Minister 20 or 30 years ago?

Andrew Hunter: My hon. Friend scores a valid point. More seriously, in my judgment the further judicial appointments can be taken from elected party politicians, the better.

David Trimble: I, too, am relieved at the reason given by the hon. Member for Beaconsfield (Mr. Grieve) for tabling the amendment. I thank him for raising this serious matter, which I hope the Minister will consider carefully.
 As I said in our debate on previous amendments, the measure significantly amends the 2002 Act, which made it clear that the provisions on judicial 
 appointments would come into operation only on devolution, yet now we are bringing them into effect in advance of devolution. The Minister should bear in mind the probabilities with regard to devolution, which was suspended in Northern Ireland in October 2002; there is no immediate prospect of its being resumed, although the Prime Minister made efforts this week on the matter. The prospects are not good, and it is a brave person who would say that devolution might be resumed in the next year or two. Even if devolution in Northern Ireland is resumed, there is little prospect of justice matters being devolved in the near future. 
 I said some time ago that there was not a sufficient basis for confidence in the community that the Administration in Northern Ireland could cope with the issues of policing and justice until there were some significant political developments, which are not in prospect. I advert to these matters to make the point that the arrangements in the Bill, which are not part of the 2002 Act but which bring forward parts of that measure to operate prior to devolution, are likely to be in effect for some time. I would like the Minister to reflect on that; the proposal for justice matters and policing to be devolved to the Administration in Northern Ireland and function normally, which was the intention of the 2002 Act, is not likely to be implemented for some time. Taking that into account, the points made by the hon. Member for Beaconsfield come significantly into play, because if the Government's proposals to change the legal system and abolish the Lord Chancellor's post take effect, what on earth will happen? 
 The post of the Lord Chancellor has evolved, and it was until recently a non-political position, particularly so far as the administration of justice was concerned. The new Secretary of State for Constitutional Affairs is a different sort of animal. That raises the question of what will happen if, in three or four years, justice matters have still not been devolved in Northern Ireland and we have no Lord Chancellor. The significant function of the administration of justice will be exercised by someone who is largely, if not wholly, a party political creature. There are some very serious questions here, and I am not sure what the answers to them are likely to be, but I want to direct the Minister's mind towards the prospect of these arrangements lasting for quite some time into the future. 
 I hope that I am not breaking any confidences when I say that on Tuesday, when one of the gentlemen who helicoptered into Hillsborough asked me how long I thought that the people in Northern Ireland, particularly Unionists, would be prepared to endure a situation in which the Northern Ireland Assembly was not functioning, my reply was, ''Last time, we managed for 25 years without it.'' We could be looking a long way into the future here: this is not just a temporary measure and should not be considered as such, because it could operate for years, perhaps decades. I should like the Minister to reflect on that and I look forward to what he has to say.

Nick Palmer: I welcome you to the Committee, Mr. Benton. Despite the Front
 Bench spokesman's lukewarm endorsement of his own amendment, I find it quite persuasive. There is a lot of sense in it, and unless the Minister makes powerful arguments against it, I am minded to oppose any leave to withdraw it.

John Spellar: That is a temptation that I might find myself able to resist. I welcome the hon. Member for Beaconsfield, who rightly drew attention to the fact that he is my parliamentary pair, but I must reject the slur on the electorate that he implied. We have been unable to use that arrangement because the electorate in their wisdom, or otherwise, have decided to give us such a substantial majority in the House that normal pairing arrangements have been suspended for a period of time. Welcome though it is to have a parliamentary pair, I do not think that he should hold his breath for such happy circumstances—from his point of view—to reassert themselves.
 The hon. Gentleman went on to describe this as a probing amendment. It is probing in an odd way. The clause was changed in the other place on the instigation of an amendment tabled by Lord Kingsland. He is not, so far as I am aware, a card-carrying member of the Labour party, nor of the Liberal Democrats, or even of the Ulster Unionists. So far as I am aware, Lord Kingsland represents Conservative interests in the other place. Indeed, in a previous incarnation, as Mr. Christopher Prout, he was an MEP. Again, it would not break any confidence to reveal that he did not represent our party, the Liberal Democrats, or the UK Independence Party.

Desmond Swayne: He was our Chief Whip.

John Spellar: Exactly. What is being sought is an amendment to a concession by the Government in response to pressure from the Conservative party.

Dominic Grieve: Perhaps I am trying to rub it in a bit, but as we are debating the matter in this House, it would be useful to hear the reasoning behind the Minister's acceptance of the change and on the other points that I have raised.

John Spellar: Quite simply, we took the point made in the other place that, for conformity and in current circumstances, the amendment relating to the office of Lord Chancellor had merit. That shows that we are a listening Government. This proposal, however, is slightly odd. I can only hope that, in the course of Committee proceedings, communications up and down the Corridor between Conservative spokespersons in the other place and those here will improve. [Interruption.] The hon. Member for Blaby (Mr. Robathan) wants to expound on communication.

Andrew Robathan: Once upon a time, I wrote to ask to be the Minister's pair, and he kindly helped me to get another pair, whom I have not used for six years either. However, that is irrelevant.
 Surely the point is that the amendment is designed to try to find out where the confusion lies in the 
 Government's mind. There must be some confusion, because on the one hand they are trying to abolish the post of Lord Chancellor and on the other they are talking about it in the Bill. We are not the Government—and incidentally, as a Back Bencher I do not speak for the Conservatives as a whole. As a humble Back Bencher, I am asking the Minister a question. I understand why we have made the proposal: to find out what the Government intend to do, because there seems to be no clarity of purpose whatever.

John Spellar: Obviously, there has been a failure of communication not only between the Lords and the Commons, but between Opposition Front and Back Benchers. Quite straightforwardly, we took the point that, with the current office of Lord Chancellor, there was a consistency in retaining that in the Bill. Of course, when the Constitutional Reform Bill has gone through the House, there will be a broader change.

Andrew Robathan: If.

John Spellar: The hon. Gentleman implies that the will of the unelected House should prevail over the will of the elected House—a subject that we shall debate at considerable length.

Dominic Grieve: Before we get carried away, first, we have not heard the will of the elected House, because we have not considered the legislation, so the question of our will does not arise as yet, and secondly, I did not table the amendment just to be mischievous. I tabled it because it is important that the House should understand what the consequences of this legislation will be. The amendment provided an opportunity to pull the trigger, to let the House understand what will happen if the legislation is passed. I have raised a number of important points, to which I hope the Minister will reply. In particular, how will the Secretary of State, if the post of Lord Chancellor disappears, discharge his duties towards the Northern Irish judiciary?

John Spellar: One presumes that, quite straightforwardly, the Secretary of State for Constitutional Affairs, who will be responsible for the judiciary, will assume the role of Lord Chancellor under the legislation that has been mentioned. That is why the Secretary of State was referred to in the first instance. However, we took the point made by the hon. Gentleman's colleagues in the Upper House on the need for current conformity.
 I say to the right hon. Member for Upper Bann that we are talking about an office that has been held, for example, by Lord Hailsham, who was generally agreed to be a good Lord Chancellor but who was also a highly political figure in the history of the previous century. Significant political figures have held that post. 
 Notwithstanding that, the crucial question is why we are bringing forward the establishment of the Judicial Appointments Commission to before devolution. Quite understandably, that question has been asked. Recommendation 77 of the criminal justice review envisages the establishment of the commission post devolution of justice. It is, however, not against the early establishment of such a 
 commission. We consider that creating the commission—that has merit in itself, quite apart from any question of devolution of justice—is entirely within the spirit of the criminal justice review, because it recognised that the existence of the commission would enhance public confidence in the judicial appointments process. As hon. Members will be aware, the Government also propose such a commission in England and Wales, and there is already a Judicial Appointments Board in Scotland. Therefore, we should not delay a corresponding improvement to the judicial appointments system in Northern Ireland, which we believe will better meet the needs and expectations of the public.

Andrew Hunter: Some of us would be more convinced by the Minister's explanation if the genesis of the Bill did not lie also in the Hillsborough joint declaration and the political intent of that declaration. Although the Minister seeks to justify the early creation of the commission, he fails to convince us if we bear in mind the political origins of the Bill.

John Spellar: I put it to the hon. Gentleman that the grounds for creating the Judicial Appointments Commission go beyond the question of the devolution of justice and of roles to the First and Deputy First Minister. The principles have their own merits. Circumstances that were not envisaged at the time of the original Bill now mean that there may be a delay. Should the benefits of a Judicial Appointments Commission—we already have the Judicial Appointments Board in Scotland—therefore be denied to the people of Northern Ireland in the interim? The commission has merits and is therefore worth bringing forward.

David Trimble: The reason why I originally sought to intervene was the Minister's reference to the criminal justice review. It might be helpful if the Committee reflects on what it said about the commission. Paragraph 6.102 of the review states:
''We believe that in Northern Ireland an appointments commission would enhance public confidence. But the factor which, above all, sways us in favour of recommending such a body is the imperative that if political responsibility for judicial appointments is to be devolved, the appointments process must be transparent and responsive to society's needs on the one hand, but on the other that it must be clearly seen to be insulated from political influence.''
 The factor that ''above all'' swayed them in favour of recommending that body was devolution. The Minister is close to misleading the Committee, because bringing that system into operation in advance of devolution is a significant change to the review.

John Spellar: I obviously beg to differ with the right hon. Gentleman. As he rightly pointed out, the first line of that paragraph states:
''We believe that in Northern Ireland an appointments commission would enhance public confidence.''
 He is right that the devolution of justice would make the creation of an appointments commission necessary. We are arguing that the commission's merits make it desirable.

Dominic Grieve: My probing amendment was intended to be slightly tongue in cheek, because I was aware of
 how the removal of the words ''Secretary of State'' had come about. However, I hoped that it would give us an opportunity to consider the consequences of future change. If the Constitutional Reform Bill ever goes through Parliament, which depends on the will of both Houses, the Government intend to attach a huge schedule that will include the alteration of the term in my amendment—the words ''Lord Chancellor'' will be replaced with ''Secretary of State for Constitutional Affairs''. That is why they were happy to give the concession in the House of Lords. However, as I sought to explain, the Secretary of State for Constitutional Affairs is not the same animal, as was made clear during debates in the House of Lords. Indeed, the Government may be beginning to accept that, because the Constitutional Reform Bill includes proposals for statutory protections for the independence of the judiciary as a result of the Lord Chancellor's removal.
 I hoped that the Minister would be able to help the Committee on that point, but unfortunately we have been unable to develop that debate. The reason for tabling a probing amendment is to identify the key issue to the Minister so that his officials can brief him and he can respond if there is settled Government policy and briefing to be provided. I infer from how the debate has developed that no such briefing is available. I suppose that that has been useful in highlighting the black hole that exists on the matter, but I am slightly disappointed, because I had thought that the Government would by now have been able to provide a response. 
 It was never my intention to reverse what my colleagues in the House of Lords achieved, which was to get the Government to change the terminology. They had to do that, because it is nonsense to refer to the office of the Secretary of State while the office of Lord Chancellor remains and the function is that of the Lord Chancellor. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Andrew Hunter: I want to put on record the opposition of the Democratic Unionist party to clause 1. The reasons are known, so I do not need to rehearse them in detail. Simply, we cannot accept the Minister's argument that there is merit in the proposal to create the procedures for judicial appointment before devolved government has been reconstructed. We are aware of his argument, but it is found unconvincing for the simple reason, to which I referred earlier, that the real origins of the Bill are to be found in the Hillsborough joint declaration.
 The joint declaration was drawn up with the Irish Government to help to create a climate in which the Assembly and Executive could be reconstituted. The declaration, and this Bill that stems from it, are in part a gesture of appeasement towards those who have scant regard for the judicial process in Northern Ireland or elsewhere. Although I shall not force a Division, I register opposition to clause 1 standing part of the Bill for that reason.

David Trimble: I rise to support the points that the hon. Gentleman has just made. He is correct, as the Minister has failed to give any reason why the provisions are being brought into operation in advance of devolution, which is the main provision in the Bill. The Minister's only reason was a throwaway line that there are merits in the proposal. He did not say what they are, however, and no case has been argued for the clause.
 The hon. Gentleman's points about the Bill's origins are also correct. The legislation, which talks so much about ensuring the independence of the judiciary and legal system, has its origin in a purely political deal that has nothing to do with the merits of the issue or the independence of the judiciary. A falsehood lies at the heart of the proposal, and I note that no one is prepared to rebut the hon. Gentleman's points and that the Minister has so far been unable to add any justification for the clause.

Desmond Swayne: I agree with the right hon. Gentleman that there seems to be no reason for introducing the Bill before devolution, and, furthermore, there are powerful reasons for waiting, given the lack of legislative slots for Northern Ireland. The Minister is conducting a consultation on several provisions that could, if he had waited, have been included in the Bill. There is a powerful argument for delaying the Bill rather than rushing it through for no apparent reason other than a political one.

David Trimble: I agree entirely with the hon. Gentleman, particularly bearing in mind the representations that the Minister is receiving from all sections of the community in Northern Ireland for rapid progress on antisocial behaviour legislation. Later, we will consider a clause that could facilitate that, but if the Minister had held the Bill back, he could have included such provisions as well. He would then have been introducing a measure that was would be received in the House and by the community in Northern Ireland.
 I want to make a further point to the Minister on the general principle. Reference has been made to Lord Chancellors and political influence. The key point that the Minister should bear in mind is that, so far as I am aware, there has never been any suggestion in modern times that persons discharging the duties of Lord Chancellor have acted other than in a non-party manner with regard to judicial appointments and the administration of justice. Some may have been very party-political animals in a different incarnation, but there is no suggestion that recent appointees have not acted impartially when discharging their functions as Lord Chancellor, especially in terms of judicial appointments. That is what concerns me about the Bill. 
 I will not repeat the arguments that I made on Second Reading. The Minister knows that it is my considered view that the creation of the Judicial Appointments Commission will result in more political influence on judicial appointments than hitherto. It will bring into the commission a number of people, admittedly a minority, who will be there for 
 purely political reasons and with largely political agendas. This is a wrong step. I would even oppose it being done after devolution, but to do so now will give certain political parties an influence over judicial appointments. 
 At the moment, appointments are made by the Lord Chancellor in a non-party political way, as most people, including people in Northern Ireland, accept. The clause, however, will allow political parties to influence judicial appointments, which is not a wise move in the present situation. That goes to the principle of the matter and it is why I oppose clause stand part. Like the hon. Member for Basingstoke (Mr. Hunter), having made my point, I do not wish to detain the Committee by dividing it.

Eddie McGrady: I rise briefly to respond to certain aspects of the debate. I do not intend to enter into any of the technical and legal areas, as I am ill equipped to do so. I simply point out that one of the necessities for the future of good government in Northern Ireland is openness and clarity about what is happening in the criminal justice system. It is important that ordinary men and women in Northern Ireland—the lay people—have a clear understanding of how matters are dealt with in the judicial system. They do not have that now. I see no great disadvantage in the representatives of the people of Northern Ireland coming together, through their various party groupings, to map out and propose a way forward that will satisfy the aspect of change that is required.
 It is not a fault or an adverse factor that there is a political genesis to the clause; it is the expression of the will of the people of Northern Ireland. The office of Lord Chief Justice is lofty and mysterious to the ordinary person, particularly in the north of Ireland. This process, when it comes to fruition—I hope that devolution take place in whichever way—will enhance the reputation of the judiciary and the criminal justice system in terms of its openness. That openness will undoubtedly give it integrity and that integrity will be protected by its openness. I have no hesitation in lending my support and that of my party to the clause.

John Spellar: I am not entirely convinced by the logic of the arguments advanced by the right hon. Member for Upper Bann and the hon. Member for Basingstoke. The 2002 Act provides for the creation of a Judicial Appointments Commission, to which I think the right hon. Gentleman objected in principle. However, as the creation of a Judicial Appointments Commission is already enshrined in statute, we are arguing about timing: whether we appoint a Judicial Appointments Commission before the restoration of a devolved Assembly and Executive and before the devolution of justice. If we believe there are merits in the creation of a Judicial Appointments Commission, and Parliament, like the reviews, is persuaded of that, there are good reasons for proceeding now, in order to deal with the issues raised by the hon. Member for South Down (Mr. McGrady).
 We do not have to draw only on abstract principles as we can consider what has happened in Scotland, which the Select Committee on the Lord Chancellor's Department examined in its second report of the 
 2002–03 Session entitled ''Judicial Appointments: lessons from the Scottish experience''. The Committee reported a general impression that the Judicial Appointments Board 
''had settled down well, and was seen as successful even by those who had initial reservations about its creation or structure.''
 I quote for the interest of the Committee; I do not draw a direct analogy. The report continues: 
''It was also particularly welcomed by those who regarded the old system of appointment as too open to political influence,''—
 that deals with the point made by the hon. Member for South Down— 
''too secretive or too dominated by those practising in Edinburgh''.
 Some comments relate particularly to the Scottish experience, but the general impression is that things have worked well. We, too, believe that what is proposed will work well, which is why we support the clause. 
 Question put and agreed to. 
 Clause 1 ordered to stand part of the Bill. 
 Schedule 1 agreed to.

Clause 2 - Membership of the Commission

Dominic Grieve: I beg to move amendment No. 10, in
clause 2, page 1, line 9, at beginning insert— 
 '( ) In section 3 of the 2002 Act (makeup of the Commission) 
 (a) in subsection 5(a) for 'five', substitute 'six' and 
 (b) in subsection 5(c), for 'five', substitute 'four'.
 The amendment relates to the composition of the Judicial Appointments Commission. The matter was considered in the other place, where it was argued that it would be wrong to have a majority of lay members on the commission; that the original justification for the structure in the 2002 Act was that it is a political necessity as part of devolution; and that as devolution is not taking place, there is no reason at present to proceed. I heartily endorse those views. 
 There is no reason why there should be a lay majority on the commission and every reason why the judiciary should be in the majority. A major concern in relation to the judiciary, here and in Northern Ireland, is that it should as far as possible be seen to be wholly depoliticised. In recent years, under the current appointment system, it has rarely, if ever, been suggested that the Northern Ireland judiciary is politically biased. However, there is a real possibility of problems if the composition that the Government propose is maintained. In the other place, my noble Friend Lord Glentoran made the point that it is necessary to provide reassurance to the Ulster Unionist community that the legislation is not simply another device to undermine the Union and the existing structure. In those circumstances, I believe that the amendment has considerable merit as it would be much more sensible to ensure that there is a judicial majority in the appointments commission. I await the Minister's response.

Andrew Hunter: I shall be equally brief, but I want to put on record concerns about the concept of ''reflective of the community''. On Second Reading, several hon.
 Members made the point that the experience of the Unionist community in Northern Ireland does not lead it to respond favourably, on first hearing, to such expressions as ''reflective of the community''. One need only look at the composition and working of the Parades Commission, the Northern Ireland Human Rights Commission and the former Police Authority for Northern Ireland as well as recent appointments to the Independent Monitoring Commission. Such instances give rise to grave concern among Unionists as to the true purpose and intent of concepts such as ''reflective of the community''.
 What precisely is meant by ''reflective of the community''? It is now a fact of life that Sinn Fein is the largest non-Unionist party in the Province. Sinn Fein remains inextricably linked with—indivisible from—the IRA. Is it seriously being suggested that a commission should be ''reflective of the community'' if that community includes representatives of a political movement that has total disregard for the judicial process?

John Spellar: As the hon. Member for Beaconsfield said, the amendment would increase the number of judicial members and decrease the number of lay members of the new Judicial Appointments Commission. However, he then commented on the balance between lay members and those with a legal background. The commission will have two members from the legal profession: a barrister nominated by the General Council of the Bar and a solicitor nominated by the Law Society. Moreover, the Lord Chief Justice is the chairman of the commission.

Dominic Grieve: Perhaps I expressed myself badly. I used the word ''lay'', when I should have used ''non-judicial''.

John Spellar: I can only be guided by what the hon. Gentleman says, in the same way that I can be guided only by the amendments he tables.

Andrew Robathan: Read his mind.

John Spellar: It is probably easier to read his mind than the mind of the hon. Member for Blaby.
 There was debate on the matter when the 2002 Act was going through the House and the House of Lords. The Bill does not alter the composition of the commission, nor, if I may say so to the hon. Member for Basingstoke, does this relate to the question of reflectivity, which we will deal with later. 
 The criminal justice review tried to strike a careful balance in terms of the commission's membership. We thought it right to identify the useful contribution that lay members could make to the appointments process—for example, the Judicial Appointments Board for Scotland has a lay chair. I believe that we have the right balance, and I ask the hon. Member for Beaconsfield to withdraw the amendment.

Dominic Grieve: I shall not withdraw the amendment; I shall test the opinion of the Committee and press it to a vote. The debate in the Lords on the matter, albeit brief, highlighted concerns, which were expressed from a number of quarters, that the composition of the
 commission makes no sense and that it would be better to ensure greater judicial involvement.
 My assessment of how Northern Ireland works, as limited as that might be, is that there is much to be commended in the view that a judicial majority is worthwhile, and I would like to register my vote on that. 
 Question put, That the amendment be made:—
The Committee divided: Ayes 6, Noes 13.

Question accordingly negatived.

Alistair Carmichael: I beg to move amendment No. 1, in
clause 2, page 2, line 1, leave out from 'Chancellor' to end of line 3.

Joe Benton: With this it will be convenient to discuss the following amendments: No. 30, in
clause 2, page 2, line 1, leave out from 'Chancellor' to end of line 7 and insert 
 'to ensure those persons appointed to be lay members must so far as possible have a sophisticated understanding of legal issues as well as proven experience in selection procedure.'.
 No. 2, in 
clause 2, page 2, line 4, leave out 'their' and insert 'his'.
 No. 3, in 
clause 2, page 2, line 7, at end insert— 
 '(9) Those responsible for making appointments under subsection (8) shall carry out their duties with due regard to the need to promote equality of opportunity in relation to— 
 (a) religion and political opinion; 
 (b) gender; 
 (c) race; 
 (d) disability; 
 (e) age; 
 (f) marital status; 
 (g) dependants; and 
 (h) sexual orientation.'.
 No. 49, in 
clause 2, page 2, line 7, at end insert 
 'At the beginning of subsection 8 of section 3 of the 2002 Act, insert ''The lay members should be selected on the basis of the additional value they would bring to the Commission's deliberation, including such qualities as experience of selection processes, the court users' perspective and the utility to assess the personal qualities of candidates.''.'.
 No. 50, in 
clause 2, page 2, line 7, at end insert— 
 '(1) In Schedule 2 to the 2002 Act in paragraph 11 (Delegation) for sub-sub-paragraph (1) leave out from ''functions'' to end and insert ''except the function of selecting a person for appointment, or recommendation for appointment, to an office, to any of its committees.''. 
 (2) In Schedule 2 to the 2002 Act, leave out paragraph 12.'.

Alistair Carmichael: I shall speak to amendments Nos. 1 to 3, which stand in my name, although I note that I have the support of the right hon. Member for Upper Bann on amendment No. 1.
 These are probing amendments, the genesis of which lies in my consideration of the explanatory notes. They are helpful, but slightly misleading in stating: 
''The Criminal Justice Review recommended that the Commission should be representative of the community in Northern Ireland (recommendation 79, paragraph 6.104).''
 When one reads that paragraph, it becomes apparent that the review recommended that the lay membership of the commission be representative of the community as a whole. The Government proposals go beyond that, as they would make the entire commission representative. Amendments Nos. 1 and 2 would restrict the duties under subsection (1) to the Lord Chancellor and restrict the ambit to lay members of the commission, so that only the Lord Chancellor could appoint those members. 
 As the Government have taken a different position from that outlined in the criminal justice review, I thought it appropriate to table these amendments to find out why. In principle, I have no objection to the whole commission being reflective of the community, but I wonder whether that is slightly ambitious when one considers the nature of people who become lawyers. Most people will have heard my declarations of interest in that regard.

Andrew Hunter: I appreciate that the hon. Gentleman's amendments are probing, but will he clarify one aspect of his thinking on amendment No. 3(9)(a)? Before any restoration of devolved government, which has been suspended due to ongoing violence and non-decommissioning, would he envisage Sinn Fein being entitled by statute to places on the commission?

Alistair Carmichael: The hon. Gentleman raises an important point, which I could probably play around with for 15 or 20 minutes without drawing breath. However, I shall resist that temptation, particularly because the Independent Monitoring Commission report will be published in the next couple of weeks and anything I say about that today will probably be irrelevant after its publication.
 Paragraph 6.104 of the criminal justice review contains an express reference to the absence of political input in the appointments process: 
''In the Northern Ireland context it is important to keep any hint of political input out of the appointments process. The lay members would be selected on the basis of the additional value which they would bring to the Commission's deliberations, including such qualities as experience of selection processes, the court users' perspective and the ability to assess the personal qualities of candidates.''
 Appointing people because they are members of Sinn Fein, or indeed of any political party, does not seem to 
 have been part of the Government's thinking and I am content to go along with that. 
 In tabling amendment No. 3, I hoped that a very small part of a very small community—legal professionals in Northern Ireland—could be reflective of the wider community. Perhaps that is slightly ambitious, but I am more ambitious in that regard than the Government, who have not defined the term ''reflective of the community''. If the wording sounds familiar, there is a reason for that. It is more or less directly lifted from paragraph 3 of the section of the Good Friday agreement entitled ''Rights, Safeguards and Equality of Opportunity'', which states: 
''Subject to the outcome of public consultation underway, the British Government intends, as a particular priority, to create a statutory obligation on public authorities in Northern Ireland to carry out all their functions with due regard to the need to promote equality of opportunity in relation to religion and political opinion; gender; race; disability; age; marital status; dependants; and sexual orientation.''
 If that is good enough for the ''Rights, Safeguards and Equality of Opportunity'' section of the Good Friday agreement, it is good enough for the Bill. There would be a workable framework to define a commission that is ''reflective of the wider community''. 
 For the interest of the Committee, we have established from the 2001 census that 40.3 per cent. of the population of Northern Ireland claim to be Catholic, 39.5 Protestant and 6.1 per cent. other Christian. I am not sure what the theology of ''other Christian''—neither Roman Catholic nor Protestant—is, but we shall pass on that. Other religions are 0.3 per cent. and none or not stated are 13.9 per cent. By gender, 48.7 per cent. of the population are male and 51.3 per cent. female. By ethnicity, 99.2 per cent. are white, and 0.8 per cent. non-white. 
 By age, the population are roughly the same as the rest of the country—26.8 per cent. under 18, about 60 per cent. aged 18 to 64 and 13.3 per cent. 65 years and older. The information is available for those who want to check the Government's performance in establishing a commission that reflects the wider community, if that is what they choose to do.

Desmond Swayne: I find that reasoning somewhat bizarre. To be genuinely reflective of the community, according to the minutiae that the hon. Gentleman defines in his amendment, the key question is how many male Catholics are disabled. Multiplying each minority by each minority will give us a genuinely reflective view in the way that he wants, but I do not believe that those statistics exist or that the quest is worth pursuing.

Alistair Carmichael: If the hon. Gentleman believes that such reflective composition is not worth pursuing, I feel sorry for him, although I am not particularly surprised by what he says. He is perhaps a little careless in his use of language and he might consider the difference between ''reflective'' and ''representative''. That is a significant point. We are not proposing a commission that is entirely representative in some statistical way. My point is that the information is already in the public domain,
 and it is possible, on an objective measure, to establish whether the commission will be considered reflective.
 The same themes are pursued in the amendments tabled by the right hon. Member for Upper Bann, albeit in a different way, and I shall leave him to speak to those. I am particularly intrigued by the formulation in amendment No. 30, although I understand its genesis. I would love to see lay members with 
''a sophisticated understanding of legal issues as well as proven experience in selection procedure'',
 but I fear that that might exclude a lot of lawyers.

David Trimble: I rise to support the hon. Member for Orkney and Shetland (Mr. Carmichael) on amendment No. 1 and to speak to amendments Nos. 30, 49 and 50. Clause 2, and subsection (1) in particular, changes the commission from being representative of the community, as provided in the 2002 Act, to being reflective. I am interested in the hon. Gentleman's point, which he rightly made, that ''reflective'' is less rigid than ''representative'', and that consequently any arguments for numerical relationships and proportions are less strong if ''reflective'' is used. That point is right and well made.
 I also endorse the hon. Gentleman's point that although the Minister has often prayed in aid the criminal justice review and talked about how the Government are implementing it, clause 2 is a significant departure from the review's recommendations. The hon. Gentleman is right that the review is clear about the fact that issues in respect of people appointed to the Judicial Appointments Commission being representative or reflective should apply only to the lay members, but the Bill applies them to the judicial and other members as well. That is a significant shift and a departure from the criminal justice review. It is important to note that. 
 I have to say to the Minister that it is no part of the function of a judiciary to be representative of the community. Oh yes, it is a good thing for the community to have confidence in the judiciary, but the judiciary should be appointed, as the Bill makes clear elsewhere, solely on merit. The function of the judiciary is to adjudicate on issues that come before it, so the important thing for the judiciary is to have knowledge of the law and good judgment in applying it. Being representative is not the point; it is not relevant. Indeed, to talk in terms of the representativeness of the judiciary is to make a grave mistake. 
 This country does not have an elected judiciary, although the Labour party seems, in many ways, to be imitating all forms of US political action and social and legal structure. The reforms that have been touched on so far seem to have been drawn quickly from the American experience and sketched out on the back of an envelope with no real consideration, but this matter is worth consideration. We do not have an elected judiciary. In our system, it is not part of the function of the judiciary to be representative. Its members are there to be impartial and skilled.

John Spellar: The right hon. Gentleman will have noted that, although the criminal justice review used ''representative'', the Bill says ''reflective''. Does he think that the judiciary should not be reflective of the community?

David Trimble: I repeat my point: the function of the judiciary is to judge impartially issues that come before it, to apply the law and to do so exercising good judgment. It is not part of its function to be representative. Even using the weaker term ''reflective'' does not allow us to depart from that basic principle. It is a good thing for the public to have confidence in their judiciary, and part of that confidence should derive from the belief that the judiciary is applying the law in a skilled and impartial way. Other considerations are not appropriate. I note that the Minister was unable to offer any reason why, on this matter, the Government have decided to go far outside the provisions of the criminal justice review in this significant way.
 That is why I tabled the amendment, which would remove the words that in effect extend to all members of the Judicial Appointments Commission the duty to be reflective. How on earth will the duty for the commission as a whole—lay and judicial members—to be reflective of the community be exercised in practice? It is worth reflecting on the commission's composition. Five members are appointed by the Lord Chief Justice. A barrister is nominated by the General Council of the Bar of Northern Ireland, and a solicitor is nominated by the Law Society of Northern Ireland. Five persons, originally to be appointed by the First and Deputy First Ministers, are now to be appointed by the Lord Chancellor. 
 Four different parties—two persons and two bodies—therefore make appointments: two appoint five members each and the other two appoint one each. Those different parties are to produce a result that, as a whole, is reflective of the community, but how on earth will that be done in practice? How will the Law Society, in making its one appointment, carry out its duty such that the commission as a whole is reflective of society in Northern Ireland? In practice, that is impossible to attain; it is impossible for the Law Society to do this. 
 Does the Minister envisage the two persons and two bodies getting together and dividing out the members? Perhaps they will take the list suggested by the hon. Member for Orkney and Shetland. One will say, ''Well, I'll go and look for an ethnic minority representative.'' Someone else will look for a man and someone else will look for a woman. That simply is not practical. I wonder whether any real thought has been given to this, but considering the political origin of the provisions and the persons likely to have contributed to their construction, I am not surprised that little thought was given to them and that they are impracticable. The point behind amendment No. 1 is that it is inappropriate, and in any event impracticable, to apply the duty to the judicial members. In parenthesis, one can add that, as the hon. Member for Basingstoke said, our experience of this is not good. 
 Paragraph 6.104 of the criminal justice review, part of which was quoted by the hon. Member for Orkney and Shetland, continues: 
''The lay members of the Commission should be drawn from both sides of the community, including both men and women. This could be achieved through a legislative provision along the lines of section 68(3) of the Northern Ireland Act 1998 which provides that the Secretary of State should, so far as practicable, secure that the Northern Ireland Human Rights Commission is representative of the community in Northern Ireland.''
 The hon. Member for Basingstoke will know that, of the various bodies referred to, perhaps the most risible appointments were those to the Human Rights Commission. The idea that the commission—in its first appointments or as it now exists—has ever represented the community of Northern Ireland is a bad joke. I remember the Secretary of State being unable to justify how the appointments to the commission reflected the political balance in the community in Northern Ireland. The majority political viewpoint in Northern Ireland was simply not represented on the commission. If that is how that provision operated, one wonders how this one will operate. 
 Amendments Nos. 30 and 49 are two different attempts to deal with the appointment of lay members. I say to the hon. Member for Orkney and Shetland that if I had to choose between the two efforts, I would prefer amendment No. 49. In this as in other matters, second thoughts are often better thoughts. It would be nice to think that we could find people who meet the criteria in amendment No. 30, but on second thoughts I prefer the terms in amendment No. 49. The hon. Gentleman will know—he read it out earlier—that this is the exact language of the criminal justice review. 
 I emphasise to the Minister that we should include those or similar words in the legislation. The reason for that lies in the fact that, in the event of devolution, the five lay members will be appointed by the First and Deputy First Ministers. The Minister should reflect on the comments made on Second Reading, particularly the view that all decisions are political. We must bear that attitude in mind. Some people in Northern Ireland regard everything as political. If someone of that cast of mind occupies the position of First or Deputy First Minister, they will approach lay appointments with political considerations in mind. 
 No names, no pack drill, but the Minister will see clearly a view expressed on Second Reading by one of the Northern Ireland Members that all appointments are political. That is the huge danger of creating this body. If the First Minister or the Deputy First Minister considers the appointment of lay members political, judicial appointments will be polluted by political considerations. That is not the criminal justice review's intention, which it is important to carry out.

Nick Palmer: Underlying the right hon. Gentleman's concerns on this and the previous clause is the assumption that lay members might be politically motivated and might overrule judicial members to appoint someone not as unbiased as one would wish. Does he not agree that because of the narrow majority of lay members it would require an almost unique cross-party agreement between lay members from all
 parts of the Northern Ireland political spectrum to overrule the view of the judicial members?

David Trimble: The hon. Gentleman could have made that point even more strongly. As I read it there are five lay members of a commission of 13. They are therefore in the minority. Clearly they could never overrule a decision, but where a committee is making a collective decision, any person on that committee can influence that choice. I do not imagine that any member of the commission would explicitly state political factors in favour of appointments—or I hope that members of the commission would not do so—but I will not go back into history. I have already been chided by the Minister for referring to 1920.
 If 13 people are choosing between various persons and are doing so by a majority decision, one, two or three members could sway that vote. They could do so for unexpressed political considerations if the persons appointed were of a political character. I referred to the comments made on Second Reading, which I believe show that some lay appointments would be made for political considerations. That is the danger to which this provision of being representative/reflective opens the door. 
 If some people are appointed for political considerations, it is likely that they will allow those political considerations to condition their approach, which might sway the appointment that is made. That is a huge danger. It is part of the reason why I have come to the conclusion that this concept, either generally or more particularly in Northern Ireland, is bad and will lead to political considerations being introduced to judicial appointments. Some hon. Members may be content with that. I am not. 
 If we have this commission—I would rather that we did not—we should ensure, in so far as we can, that the lay members are not of a political character. I do not think that the criminal justice review intended that they should be. That is why it is highly desirable to include in the Bill the following words from the review: 
''The lay members would be selected on the basis of the additional value which they would bring to the Commission's deliberations, including such qualities as experience of selection processes, the court users' perspective and the utility to assess the personal qualities of candidates.''
 Amendment No. 50 is extremely important, particularly in the light of the comments that I have made. It relates to paragraphs 11 and 12 of schedule 2 to the 2002 Act on the operation of a Judicial Appointments Commission and delegation in particular. Paragraph 11(1) states: 
''The Commission may delegate any of its functions (to such extent as it determines) to any of its committees.''
 The committee can therefore exercise those functions; this is not simply a question of it considering the matter and reporting back. 
 Furthermore, paragraph 11(2) states: 
''A committee to which a function has been delegated may further delegate it (to such extent as it determines) to a sub-committee.''
 We are moving further away from the 13-member commission. A sub-committee could exercise a 
 function, not just consider a matter and make a report with recommendations to the full commission, but actually delegate that function. 
 Furthermore—this is where the real evil lies—paragraph 12 states: 
''If the function of selecting a person for appointment, or recommendation for appointment, to an office is delegated to a committee or sub-committee,''—
 it is clear that the committee or sub-committee can make the appointment without reference to the commission— 
''the committee or sub-committee must include a member of the Commission and, unless he is a lay member, a person who is eligible to be a lay member.''
 One can therefore delegate to a committee or sub-committee that contains persons who are not members of the commission, and the only requirement for commission involvement is down to one person if it is a lay member. There could thus be a situation in which the commission delegates its functions to a committee that includes people who are not members of the commission, but nothing is said about who the other members of the committee should be. We are talking about the commission and how it is made up—appointed by the Lord Chief Justice, the Bar Council, the Law Society and the Lord Chancellor—and we have said that the commission must be reflective or representative of the community, but the functions can be delegated to a committee, and nothing is said about the other members of the committee, who could be anybody. 
 There is a huge error in the proposal, and it is open to massive abuse. It is technically open to a sub-committee that consists of a lay member, plus other persons who are not members of the commission, to make an appointment. This is a very bad provision, and I want the Minister to think carefully about it. The amendment would considerably confine the proposal.

John Spellar: May I clarify the right hon. Gentleman's point? Paragraph 11(1) puts the ability to delegate in the hands of the commission, so any decision to delegate to a sub-committee would be a decision taken by the commission. It is not an external appointment of sub-committees but the commission itself deciding how to run its own business. Why does he have difficulty with that?

David Trimble: Because very important functions are given to the commission, especially with regard to appointments. What is the point of having a Judicial Appointments Commission if that commission is authorised to delegate its function of making appointments? The whole concept is wrong. Why are there detailed provisions about the make-up of the commission and the character of people on it if a little paragraph in a schedule gives the commission the capacity to delegate the function to what is effectively another body?

John Spellar: Because it is the ability of the commission to make such a decision, especially when it is responsible for about a thousand posts in Northern Ireland, and not just in the court and the High Court—it goes wider than that, and even includes tribunals, as the right hon. Gentleman
 knows. For example, it may be argued that to have the president of a tribunal engaged in the appointment of tribunal members is desirable practice. However, I return to the point that the delegation of the powers is in the hands not of Ministers but of the commission, which can therefore sensibly manage its own business. I have confidence in the commission to do that.

David Trimble: I come back to the huge scope of paragraphs 11 and 12. The Minister argues that there might be occasions on which it is sensible to have a committee or sub-committee. Perhaps, but why delegate the entire function? Once a function is delegated, the commission is dependent on the commission members in the committee or sub-committee for information about what is going on. The link can get so tenuous as to be down to a single person, particularly if that person is a lay member who reads into the provisions the justified concern that I have expressed about how they might be appointed post-devolution. The provision is dangerous.

John Spellar: To clarify the position, I repeat that the commission itself will delegate power and that a majority of its members are from the legal profession in one form or another. However, it seems to me that if responsibility for appointment was delegated, but those who had been so delegated had to report back to a body that could overturn their decisions, there could well be an absence of due process. Those who have been appointed on the sub-committee will have interviewed the candidates and formed a judgment of their qualities. To have that decision overridden by those in the commission who were not involved in the interview process would cause difficulties in the commission's conduct. Those who went through the initial process might also have a legitimate cause for complaint.

David Trimble: The Minister is arguing against himself. There is a huge contradiction in his argument. He started by saying that the creation of the sub-committee was the work of the commission and that we should trust the commission to carry out its functions. He then said that it would be wrong for a committee of perhaps only one person, to which the power to make certain appointments had been delegated, to report back to the commission as a whole, so that the other 12 might consider any decision. He thinks that that would be a bad thing. Either he trusts the commission or he does not. If he trusts the commission enough to enable it to delegate functions in that way, why does he not trust it to oversee those functions? There is a huge contradiction in his approach.

John Spellar: I think not. If the commission thought that process had not been correctly conducted, it might be appropriate for it to do what the right hon. Gentleman describes. However, it has delegated those powers because it has confidence in the persons whom it has appointed to the sub-committee to make a judgment based on the interview, the information and the impression that they form of the candidates. The issue is not the integrity or the judgment of any member of the commission. The important point is
 that those members of the sub-committee have been able to avail themselves of all the facts. The ability to delegate the relevant function to the sub-committee would indicate that confidence. I do not see that that is an abuse of process.

David Trimble: Again, I return to the fact that the Minister is talking about the confidence that he implies he would have in the non-commission members, who could easily form a majority of a committee or sub-committee. He implies that they are to be trusted enough not to have what they are doing overseen by the rest of the commission.
 Who are these people? We do not know. They could be anybody. The duty that the commission should be reflective of the community that the clause provides for does not apply to the committee or the sub-committee—that is, unless the Minister wants to introduce an amendment. Why is there no provision about the character of the appointments? That is not a matter that the criminal justice review appears to have contemplated, although I stand to be corrected—and there are some here who are in a position to do so. However, the commission can delegate any of its functions to committees. That needs to be thought about carefully. We need to receive some information about that. 
 With respect, the Minister has provided no information at all. The delegation includes the core activity of the commission, namely making appointments. Surely we should know more about this. We are touching on the core matter—one that I consider of huge importance. He may be able to give more detailed comments later, and in the absence of some real explanation of this important issue, which some hon. Members might consider worth a vote, my inclination would be not to press it to a Division now. I want to give him a chance to return to it. 
 I should be anxious to pursue the matter on Report, if we get to Report, because it appears that a little paragraph tucked into the provisions will open up a huge hole in the operation of the commission. In view of the political and religious considerations, there is a need for something to be spelled out in detail. The Bill does not include that, and unless I have overlooked it, neither does any of the material that we have before us.

Andrew Hunter: I am grateful to the right hon. Gentleman for raising the issues covered by amendment No. 50, which I had not detected. It reveals a huge hole, as he said. The question is of the utmost seriousness, and the Government must surely pay attention to it. My initial reaction is that it is wholly unacceptable that, while the Government emphasise the idea of the commission as a whole being ''reflective of the community'', it should be possible for the constitution of a committee or sub-committee not to reflect that principle at all. That involves more than a tension. It creates a potential contradiction, and it is a point that needs to be seriously attended to.
 I fully support the right hon. Gentleman on amendments Nos. 30 and 49. I share his deep concern about the concept of being ''reflective of the 
 community''. It is fundamentally flawed and impractical to implement. As the amendments suggest, the only consideration should be the quality and qualifications of the people concerned. 
 As to the probing amendments tabled by the hon. Member for Orkney and Shetland, I thank him for his reply to my intervention about political requirements, and how far that matter should be extended. I understand his wish to sit on the fence for the time being, so we shall return to that later. 
 However, will the Minister, in responding to those probing amendments, deal with another issue that perplexes me? Let us suppose that the Bill is enacted and the Lord Chancellor and the other people responsible for making nominations set about trying to secure membership of the commission that is reflective of the community. What will happen if someone is disaffected or disgruntled? That could happen if an applicant was overlooked. I apologise if I am guilty of an oversight, but the Bill appears to me not to include any provision for that. 
 To whom should the disgruntled person bring a case? Should it be the Lord Chancellor, the very commission that rejected his application, or the Secretary of State for Northern Ireland? Are there, or should not there be, established procedures for such a person to follow? Who is to hold the Lord Chancellor responsible for ensuring that the commission is reflective of the community?

Dominic Grieve: This has been a lengthy debate, and I do not want to take up too much more of the Committee's time. Amendment No. 1 was the key amendment, but we have rather wandered away from the central issue, which the hon. Member for Orkney and Shetland very cogently explained.
 The 2002 Act did not provide for judicial members of the Judicial Appointments Commission to reflect the community as a whole, but the Bill does. When the matter was considered in another place, various points were made about how difficult it is to find the right people to sit on the commission, given the small pool of judges from which candidates can be drawn. It is slightly strange, therefore, that we should introduce to the Bill a measure that provides—the Minister will correct me if I am wrong—for judicial members to be bracketed according to how they might reflect the wider community. 
 As the Minister knows, the Opposition support the principle that the judiciary should reflect the community as a whole, although we also emphasise that judges must be appointed on merit. Once judges are so appointed, when does one end the scrutiny of the commission's composition? Must every sub-committee reflect the community as a whole? That is the road down which the Government have chosen to go. 
 When members of the judiciary are being chosen from the very small pool of available talent to sit on the commission, it appears that the Government now think it appropriate that their religious background—
 that is what we are talking about—should be one of the factors considered. That bothers me. 
 I realise that circumstances in Northern Ireland are unusual, and heaven knows we have introduced enough legislation over the past few years to try to accommodate that, including setting up a system of devolved government of the most bizarre kind. I have always accepted it, given that it may be the only way forward, but the way it operates is, indeed, bizarre. This is my point: having chosen people to be judges—therefore, the assumption is that they are capable of discharging their functions without fear or favour and without bias—are we then to say that those who will sit on the Judicial Appointments Commission must be vetted for external appearances rather than on the basis of their judgment or whether they can make a proper contribution to how the commission operates? It bothers me that we are doing that. 
 We are breaking down the scrutiny of who is or is not to be appointed almost to the point of absurdity. I can see the force of the argument when it comes to lay representation, because that will be a highly politicised issue, but I ask the Minister to think carefully about taking the same approach with the judiciary. 
 I think that there is a majority of Roman Catholic judges in the High Court in Northern Ireland. I may be wrong about that, although I see that the right hon. Member for Upper Bann is nodding. I must say that I am totally ignorant of the religious affiliation of senior judges in Northern Ireland, just as I have not the slightest clue about the affiliations of judges in England. That is as it should be. Are we really to say that someone who would be right for appointment to the commission because he has taken a great interest in the recruitment of judges and in the professional advancement of those in the solicitors' profession and those at the Bar could not be appointed because the balance meant that the commission needed either a Protestant or Catholic? That would be most unfortunate. 
 It may be a distant aim, but we should be striving for a day in Northern Ireland when the question of people's religious affiliation is, as it should be, a total irrelevance. Then we could get rid of the complex legislative structure that tries to provide balance. If we cannot even make a start with those who have passed the scrutiny test in becoming judges in the first place, I despair. This troubles me, and I believe that amendment No. 1 has a great deal of force.

John Spellar: There are several amendments and several issues to engage with. Amendment No. 1 would remove the duty to secure a reflective Judicial Appointments Commission from those responsible for making nominations to it—the Lord Chief Justice, the Bar Council and the Law Society. As the hon. Member for Orkney and Shetland rightly pointed out, amendment No. 2 is consequential.
 Clause 2(1) will amend the 2002 Act to provide that the Judicial Appointments Commission as a whole should be, as far as it practicable, reflective of the community in Northern Ireland. Notwithstanding the commission's ability to delegate functions and roles to committees and sub-committees, which we have just 
 debated at length, it is still a commission as a whole. We must consider the question whether the burden of reflectiveness should fall on the lay membership or on the commission in its entirety. 
 The provision requires the commission as a whole to be reflective of the community. Those who have the power to nominate members will have to play their part in working towards that objective, and it is not enough to require the Lord Chancellor alone to address reflectiveness when he does not have responsibility for appointments to the commission. Accordingly, I ask for amendments Nos. 1 and 2 not to be pressed.

David Trimble: Before the Minister concludes on amendment No. 1, will he tackle my practical question on how the other bodies—the Bar Council, the Law Society and the Lord Chief Justice—will fulfil the duty that he is imposing on them? That is particularly important for the Bar Council and the Law Society, which each make only one appointment.

John Spellar: I understand what the right hon. Gentleman says, but I again stress the point, which he has graciously accepted, that ''reflective'' is less prescriptive than ''representative''. We have moved away from the review in that regard. I accept that the objective will require those making nominations to consider arrangements between themselves on how this might be achieved, notwithstanding the fact that they must also consider appointments on merit. I understand that there are possible tensions between the two principles, but they are both extremely important.

David Trimble: The Minister says that the bodies should consider arrangements. What arrangements, and how will they be taken into consideration? I refer again to the Bar Council and the Law Society, each of which makes only one appointment. What arrangements could be made with regard to those two bodies?

John Spellar: Those bodies might undertake collective consideration or communicate with each other about whether, consistent with principles of appointment on merit, they can also achieve reflectiveness in the commission. I am not saying that this would be the outcome, but I am sure that the right hon. Gentleman concedes that it would be undesirable if the commission was completely unreflective of the community in Northern Ireland.

David Trimble: I thank the Minister for giving way again, because I want to probe his thinking further. He says that the bodies might communicate with each other. How will they do that and what will they say? Will there be an arrangement such as that which pertains between the Law Society and the Bar, where they get together and the Law Society says, ''We'll appoint a woman solicitor if you appoint a male barrister.''? Is that the arrangement that the Minister is thinking of? If there was an arrangement of that nature, each body would individually be guilty of discrimination, because it would be making an appointment on the ground of gender. Those bodies
 will make only the one appointment. I ask the Minister again: what arrangements will there be and how will they be legal?

John Spellar: Again, from the point of view of the commission, and lawfully trying to achieve a reflective commission, I keep coming back to whether the right hon. Gentleman thinks it would be desirable to have a completely unreflective commission. In the same way, we may consider the parallel between the laws of chance and the laws of probability.
 The right hon. Gentleman takes the example of the involvement of women in the law. I fully understand that, historically, the legal profession has contained a high percentage of males and that a limited number of women moved up through it. As the number of women engaging in the legal profession has increased, we would think it slightly odd if, for example—I am in no way suggesting that this is the exact situation—that was not reflected in appointments as people move up through the system.

Alistair Carmichael: Surely, by definition, it is accepted that the non-lay appointments are not going to be representative. That is the reason for having the lay representatives on the commission.

John Spellar: There is also the matter of considering the commission as a whole to try to make it reflective. Reflective is the important term. We must recognise that we may be talking about a process over time, and that these are the aspirations and objectives that we are working towards. The principles are consistent. The hon. Gentleman, on reflection, might even consider that, from a Liberal Democrat point of view, the objective is desirable.

David Trimble: I do not want to labour the point as it has already been made, but I have just one more request to make of the Minister. Will he please think about this matter and consult with whomever he considers appropriate? Will he also undertake to give either the Committee or the House on Report some indication of what arrangements he has in mind and how they will operate in practice? I refer to the example given earlier. Some arrangements that might naturally come to mind would be illegal and would involve discrimination contrary to legislation. I do not expect the Minister to answer that point in detail now, but perhaps he will come back on Report and say what arrangements he has in mind.

John Spellar: I certainly give the right hon. Gentleman that undertaking. The requirement is for the commission to be reflective
''so far as is practicable''.
 We do not believe that that would lead to discriminating unlawfully. However, I assure him that I will reflect further on the points that he has raised. 
 I will return to amendment No. 3 shortly. Amendment No. 30 would require that the First Minister and Deputy First Minister must, as far as possible, ensure that lay members of the commission 
''have a sophisticated understanding of legal issues as well as proven experience in selection procedure.''
 The amendment would also remove the requirement that the composition of the commission, as far as reasonably practicable, be 
''reflective of the community in Northern Ireland.''
 Amendment No. 49 would ensure that lay members are 
''selected on the basis of the additional value they would bring to the Commission's deliberation''.
 It describes qualities such as 
''experience of selection processes, the court users' perspective''
 and the ability to 
''assess the personal qualities of candidates.''
 We might have to define ''the court users' perspective'' carefully in that context. 
 I appreciate hon. Members' concern that the lay members should bring valuable experience to the commission. We obviously want individuals who can make real and meaningful contributions. The qualities set out in both amendments are laudable. Indeed, we hope that lay members could bring such qualities to the commission, but we do not think it necessary to specify in primary legislation what those desirable qualities would be. 
 I am sure that hon. Members agree that the matter would be best dealt with administratively. Accordingly, I urge that those amendments should not be pressed. 
 Amendment No. 3 would make specific the matters to be regarded when seeking to secure a commission that is reflective of the community. It is helpful to think about what is meant by the term ''reflective'', and no doubt many of the matters listed in the amendment are relevant to that issue. Having said that, we have always made it clear that political opinion is not a factor in the judicial appointments process, and we do not propose to consider it in relation to appointments to the commission. 
 We hope that members of the commission will be reflective of the community in terms of their community background, gender, age, ethnicity, disability and the part of Northern Ireland to which they consider themselves most closely associated. We do not think that there would be an advantage in making the Bill prescriptive. 
 The Government are fully committed to a reflective commission, and it is right and proper that those undertaking such important work should be identifiable with the community they serve. We do not need to go further than the current provisions. I am confident that when the commission is established it will be reflective of the community as far as possible, and will command the confidence of the community

Dominic Grieve: I hope that the Minister will forgive me, but those two sentences were the most wonderful official gobbledegook. It left me completely unable to fathom how a very distinguished Jewish lawyer—who is a member of a very small minority—could be reflective of the community. He cannot, because he may be in such a tiny minority within Northern Ireland that he is reflective of no wider community at
 all, but he might be the perfect person to be a judge and serve on the commission.

David Trimble: There are distinguished Jewish lawyers.

Dominic Grieve: I am well aware of it, but there is a very small Jewish community. Once the reflective basis is introduced, such people will be squeezed out, not brought in.

John Spellar: I say to the hon. Gentleman that that would be the case were we saying that there should be a representative quota. That is precisely why—unlike the review—we use the term ''reflective'' rather than ''representative''.

Andrew Hunter: I asked the Minister to clarify whether there would be some formalised means of redress for an aggrieved person. Did I understand him to say that he does not intend to establish any procedures whereby someone who believes that the commission is not reflective of the community can take action?

John Spellar: I shall have to come back to the hon. Gentleman on that point, because I would stress that the matter properly depends on the use of ''reflective'' rather than ''representative''. We are not talking about a quota system; we are looking at a duty for those responsible for appointments to seek to achieve a reflective body. That body would, therefore, be one that commands the widest possible confidence in the community. I am not sure that people would have redress on the matter, and I am not sure whether they could take action on judicial review. I hope that before the end of my contribution, enlightenment will come to me and I shall be able to respond to the hon. Gentleman's point.
 Amendment No. 50 would preclude the commission from establishing a committee to select someone to fill a judicial vacancy. We dealt with that matter at some length. Interestingly enough, the criminal justice review report did not envisage that the commission as a whole would conduct interviews. It would clearly not be practical to have an interview panel comprising 13 people. The functions of the commission in relation to particular appointments would have to be carried out by a body other than the commission in its entirety. Paragraph 6.105 of the review says: 
''nor do we believe it necessary that each individual panel should consist only of members of the Commission, although that may well be the case for the more senior appointments.''
 The review also recommended that a selection panel should have one lay member and a member of the judiciary at the tier to which the appointment would be made. 
 As I said during the lengthy exchange with the right hon. Member for Upper Bann, the commission is independent and best placed to decide how it carries out its responsibilities most effectively within the parameters defined by the 2002 Act. With some appointments—for example, to specialist tribunals—the commission might want those making the selection to include someone with detailed knowledge of the tribunal. In those circumstances, it might be necessary to include on the selection panel someone other than a commission member. However, we would expect a different approach when selecting people for 
 appointment to the High Court and there would be a strong case for saying that only members of the commission should be involved. The Lord Chief Justice, who will chair the commission, has agreed that a committee of the commission—the assessment panel—will be established for High Court appointments. It will be chaired by the Lord Chief Justice or, if he is unavailable, a Lord Justice of Appeal, and will comprise at least two other members of the commission, including a lay member and another judge. Only members of the commission would be on the committee to select a High Court judge.

David Trimble: The material that the Minister has just given us is interesting and we want to reflect on it. I note that he said that there is a strong case for ensuring that the committees are composed in particular ways and that senior people, particularly senior judicial members, should chair them. If there is a strong case for ensuring that, why is he content to leave in existence a provision containing absolutely no safeguard?

John Spellar: I have alluded a number of times to the composition of the commission, and we believe that we can rely on the commission to discharge its functions appropriately. We have given it the enabling power and we have confidence in it. Interestingly, we believe that a similar case can be made for some appointments lower down the system, but we do not propose to tie the hands of the commission in that regard. We have confidence in the commission, and I ask the hon. Gentleman not to press the amendment.

Alistair Carmichael: It is almost a convention that at this stage of our consideration the Minister says that we have had a good debate. I do not think that we have had a particularly good debate, because there has been no force of argument from either side. I say to the
 Minister, with regret, that his arguments were unusually and uncharacteristically lacking in weight. The right hon. Member for Upper Bann suggested that he would reflect on the arguments on amendment No. 1. I sincerely hope that he will do so, because the issues that we have raised remain unresolved to my satisfaction, and they are substantial and important.
 On amendment No. 1 and its consequential amendment No. 2, the difficulty is that the Minister has demonstrated the wisdom of the approach taken by the criminal justice review in the first place. The requirement for lay membership of the commission is there because the people who would be drawn from the legal profession would not necessarily reflect the community as a whole. To extend that to the commission as a whole would create the host of problems that the right hon. Member for Upper Bann raised, and I hope that Minister will deal with those. 
 On amendment No. 50, it is exceptionally dangerous to offer unfettered discretion for delegation to such a commission. There are any number of ways in which it might be abused. I am not suggesting that it would be, but the possibility exists and there should therefore be safeguards. The parallel that came to my mind was with local government. For example, planning decisions are considered by a planning committee but ratified by the council as a whole. That is eminently sensible. It is not unusual and there are plenty of precedents. 
 I am mindful of the time and have no doubt that we shall revisit the issues, so I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order. 
 Adjourned till this day at half-past Two o'clock.